Wilderness: Aspirations and Details of Implementation Talk Past Each Other

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Here are my thoughts based on what I read in the post and the comments, both things are true:

A. We want some places with less direct human influence- “don’t do stuff where you don’t have to.”

B. How exactly that manifests (is expressed) will never be straightforward. It will always be political in terms of designation, and influenced by staff and externals. Some users and uses will be allowed and others not, and some decisions at different levels will appear to be fairly random.

So perhaps we are always going to talk past each other if one side leads from the idea (A) , and the other from (B) “as the idea plays out in the world.” Unlike the clip from Fiddler on the Roof above, I think in this case, both sides are right.

Or you could say Wilderness is like Roadless. but with much better articulated philosophical underpinnings, and much better, and longer term,  marketing.

Since this is a religious time of year for the Jewish and Christian traditions, I thought I’d weigh in on what people might mean when they say “religious” in the context of Wilderness (that is, Wilderness on federal lands). Anyone who uses that terminology (as well as others) are welcome to weigh in.

By “religious” people  could mean:

1. Adherence to unprovable beliefs. I don’t think that this is particularly relevant, as I think most of us would agree with this statement of Anonymous:

The crux is not managed versus unmanaged or manipulated versus non-manipulated, not really. Granting that these terms are ready to hand and often useful shorthand, more precisely the wilderness act is as you say, that is an aspiration towards a type of human nonintervention in order to obtain goods that more typical and intensive forms of human intervention would render unobtainable. Aspirational doesn’t mean unreal – many realities begin in just that, human aspiration.

As a inherently picky person about words, I’d only add “services” to “goods” in his statement. I really like Anonymous’ use of the word “aspirational”.  Fire suppression, jets flying above, pollution, grazing, trails, bridges and the host of other interventions that do take place, in my view are different expressions of that aspiration.  Even the idea, that I think we heard before, that NPS has different expressions (e.g. chainsaws) than the FS.

Norm’s comment, it seems to me, says basically the same thing, that the expressions of that aspiration sometimes don’t seem like they follow a logical course.  But of course, being aspirations, we wouldn’t expect them to. Perhaps this is a bottom-up (“what I see as OK vs. not OK doesn’t make sense”) vs. top-down (the aspirational part) approach to the question.  As Norm stated:

But the difficulty is that there is no true condition of non-manipulation left to choose. To say that Wilderness should simply be left alone is, at this point, more aspiration than reality. Human beings are already in the system. If people are permitted to enter wilderness, they inevitably alter natural processes. They stock lakes and streams, introduce exotic plants and animals, and reshape fire regimes directly or indirectly. Wildfire itself complicates the ideal of “letting nature take its course.” If a fire begins inside Wilderness and spreads into the wildland-urban interface, intervention suddenly becomes necessary. If a fire begins outside Wilderness and burns inward, is it still “natural,” or has it already been shaped by human land use, suppression history, and climate effects?

The choice, then, is not between management and non-management. It is between different forms of human management, each with consequences. Wilderness may be described as unmanipulated, but in practice its boundaries, permitted uses, and protection are already products of human judgment. The Act itself was passed for human purposes—for what we value, preserve, and wish to pass on to future generations. The question is not whether humans will manage Wilderness, but how honestly we acknowledge that we already do.

2. The existence of a priesthood that governs these expressions- and these priests have all the power to determine their application. Having good goals is and has always been frequently used to gain power.  Think Europe’s religious wars which led to the promotion of religious tolerance in the founding of the US. Maybe you have not witnessed this, but decisions of this group are sometimes questioned by agency peers and outfitters (of course, they are regulating outfitters so some tension is necessary and appropriate). There is even a pejorative expression for some wilderness employees  related to this which I won’t repeat here.

3.  The tension between aspiration and on-the-ground practice has long been noted by… religious people such as Thomas Aquinas (1225-1274):

Although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects… In matters of action, truth or practical rectitude is not the same for all, as to matters of detail, but only as to the general principles; and where there is the same rectitude in matters of detail, it is not equally known to all… The principle will be found to fail, according as we descend further into detail.

4.  Or perhaps religious figures make judgments that do not fit all situations, nor as time changes the world.  I think that may be what people mean by “scriptural.”  Or they may not seem to make sense or seem relatively trivial  (think of  food laws in Leviticus). For example, there was a certain event that went through Wilderness which taken in total had more than 20 heartbeats (or whatever the number is).. the Wilderness folks decided to have clumps of 20 separated by some distance.  It could be argued that it would be less of an impact on others to let them all go through in a clump and be done with them. Who knows?

Then there are matters of interpretation Here is what Wilderness Connect says about wildfire:

Lightning-caused fires are sometimes allowed to burn in wilderness and thus to allow fire to play its natural ecological role. These fires are managed to reduce, to an acceptable level, the risks and consequences of catastrophic wildfire and of fire escaping from the wilderness. In order to let naturally-ignited fires burn in wilderness, there must be an approved fire management plan, and the fire must meet and remain within established criteria.

Prescribed fires, those ignited on purpose by qualified personnel, may be used to reduce fuel buildups within wilderness, when approved in fire management plans. These plans detail fire goals for the area, historic fire occurrence, the natural role of fire, expected fire behavior, appropriate fire suppression actions and techniques (ex. dropping water or retardant from airplanes), smoke management, and possible effects on adjacent landowners and wilderness visitors.

Most fires are detected from aircraft overflights and lookouts located outside the wilderness boundary, although some lookouts are maintained within wilderness. Fire suppression crews protect natural and cultural features, such as historic cabins, by using suppression tactics that minimize the lasting evidence of suppression actions. Motorized equipment is used only when essential, water is used instead of fire retardants, when possible. Watershed restoration in burned areas is allowed where conditions cause unnatural resource loss or threaten life or property outside wilderness.

5.  Or a kind of preachy tone when talking about it.  This is harder to describe but can be offputting and may remind people of  (some) religious institutions. An example is when preachy people talk about other people need to be more humble.

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For me the whole climate-humans-wildfire-natural thing was confusing until I read this in a Wilderness Watch response to comments, which I think articulated a position very well (page 6).

Lucas (1973, p. 151) stated, “If ecological processes operate essentially uncontrolled within the Wilderness frame of reference, the results, whatever they might be, are desirable by definition. The object is not to stop change, nor to recreate conditions as of some arbitrary historical date, nor to strive for favorable change in big game populations or in scenic vistas. The object is to let nature ‘roll the dice’ and accept the results with interest and scientific curiosity.”

It seems to me, though, that wildfire necessitates deciding what is “rolling the dice” and what is not. If a fire starts in a Wilderness area or is moving into on. the only reason to stop it would be risk of undesirable wildfire effects as it moves out of Wilderness, which I think is more or less current policy, and has been. But if our wilderness areas are intended to be reference conditions, why would we need more? Those don’t seem to be the arguments politicians use when they argue for more acres to be included.  so I’m still a bit confused.

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And of course, Wilderness designations are (very) political. Hence the very non-dogmatic set of nonconforming uses when Congress designates Wilderness.  These were summarized in a 2022 CRS report.

Nonconforming Uses or Conditions7
Lands do not have to be untouched by humans to be eligible for statutory designation as wilderness. Specific statutes designating wilderness areas may terminate or accommodate any existing uses or conditions that do not conform to wilderness standards (commonly referred to as nonconforming uses). Many previous wilderness designations have directed immediate termination of nonconforming uses, whereas other bills have directed the agencies to remove, remediate, or restore nonconforming conditions or infrastructure within a specified time frame.
Alternatively, many nonconforming uses and conditions have been permitted to remain in designated wilderness areas. The Wilderness Act explicitly allows continued motorized access by aircraft and motorboats in areas where such uses were already established. The Wilderness Act also permits motorized access for management requirements and emergencies, and for fire, insect, and disease control. Numerous wilderness statutes have permitted existing infrastructure (e.g., cabins, water resource facilities, telecommunications equipment) to remain and have authorized occasional motorized access to operate, maintain, and replace the infrastructure. A few statutes have also allowed new infrastructure developments within designated wilderness areas. Although such authorizations are usually for a specific area, some statutes have provided more general exemptions, such as for maintaining grazing facilities or for fish and wildlife management by a state agency in all areas designated in the statute. Various existing wilderness statutes have included special access provisions for particular needs. For example, several statutes have included provisions addressing possible military needs in and near the designated areas, particularly for low-level military training flights. Similarly, statutes designating wilderness areas along the Mexican border commonly have allowed motorized access for law enforcement and border security.

Then there’s Alaska,

In recognition of the special conditions that exist in Alaska, the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) allows many activities that are otherwise prohibited in wilderness areas outside Alaska. Most notable are motorized access (ex. vehicle, snow machine, bush plane) for traditional uses and subsistence activities (often by Native Alaskans), modification of fish habitat and establishment of fish hatchery programs, construction of recreation cabins and shelters, cutting of trees for house logs and firewood, and commercial salvage of beach logs. Temporary facilities, such as tent platforms and shelters, may also be established for hunting and fishing.

For Wilderness to remain wild, it must remain unmanipulated

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[The following opinion piece was written by Kevin Proescholdt, the conservation director at Wilderness Watch (an organization that I work for). I thought it would be of interest to those on this blog, especially since the piece is in response to a recent opinion piece by a U.S. Forest Service research fellow. Founded in 1989, Wilderness Watch is the leading national organization whose sole focus is the preservation and proper stewardship of lands and rivers included in the National Wilderness Preservation System. – MK]

For Wilderness to remain wild, it must remain unmanipulated
By Kevin Proescholdt, Wilderness Watch

A recent piece by a U.S. Forest Service research fellow supporting manipulating designated Wilderness areas showed a profound misunderstanding about Wilderness, its history, its stewardship policies, and the Wilderness Act itself. The author’s proposed solution would result in the loss of the very quality for which Congress designated Wildernesses: their wildness.

The Forest Service proposal suggests that we use active management interventions and manager-ignited fire in Wilderness to counter the impacts of climate change and to replicate Indigenous burning practices. In doing so, it reflects an all-too- common bias within the federal land management agencies for active management activities and projects. It also reflects a similar all-too-common hubris and arrogance in those same federal agencies that they know what’s best for Wilderness, that their choices for desired future conditions in Wilderness should take precedence over Nature’s choices.

The proposal flies in the face of wilderness policy, history, and the provisions of the 1964 Wilderness Act itself. The one central purpose of the Wilderness Act, its prime directive if you will, is to preserve wilderness character, an area’s wildness. In fact, the Wilderness Act is so emphatic about that point that it says it twice: “[E]ach agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character.” The federal courts have consistently agreed that this is the central purpose of this law.

Howard Zahniser, the visionary conservationist who wrote the 1964 Wilderness Act, also wrote extensively about wilderness. In one of his well-known passages, written 11 years before the Wilderness Act passed Congress, he explained, “We must remember always that the essential quality of the wilderness is its wildness.”

Yet the Forest Service proposal wants to “improve” or freeze ecological conditions within Wilderness with active management and manipulation, even though doing so will result in a loss of the area’s wildness. The Wilderness Act does not direct us to preserve any certain ecological condition or forest type, but rather to preserve the area’s wildness, even if some of us humans may not always like all the outcomes that Nature might devise.

Across the nation, the federal agencies try to manipulate Wilderness to fit their desires, not Nature’s choices. The agencies are trying to poison 46 miles of Buffalo Creek in the Absaroka-Beartooth Wilderness of Montana, for example, to plant fish that never historically lived there. In the Sequoia-Kings Canyon Wilderness in California, the agencies want to invade Giant Sequoia groves to log out undesirable trees and plant sequoia seedlings, despite the lush natural sequoia regeneration after recent fires. In the Shawnee National Forest in southern Illinois, the agencies want to burn off the entire National Forest, including about 40,000 acres of designated Wilderness there, even though the fire history there is much different than in the arid West. And in the Sierra and Sequoia National Forests of California, the Forest Service wants to torch 842,000 acres of designated Wilderness in a panicked attempt to prevent future wildfires.

The recent Forest Service proposal also wants to manipulate Wilderness to honor or replicate the practices of “Indigenous peoples, who in fact tended those lands for thousands of years.” While the intent to honor Indigenous peoples is honorable, the suggestion is off-base here as well. It cites trail networks, scarring of tree bark, and berry picking as examples of how Indigenous peoples influenced the landscapes.

Here again, the agency’s misunderstanding of wilderness history, stewardship, and law comes through. The 1964 Wilderness Act defines Wilderness in part as “untrammeled.” Untrammeled does not mean “untouched” or “pristine,” as the proposal implies. The Wilderness Act does not in fact contain either word. Untrammeled rather means unmanipulated, unconfined, uncontrolled, or unrestrained. An untrammeled Wilderness would allow ecological and evolutionary forces to operate without restraint, modification, or manipulation. If Indigenous people made trails, or scarred bark, or picked berries, or engaged in myriad other activities that had impacts on these places—much like many allowed uses do today—those actions don’t violate the meaning of “untrammeled” within the context of the Wilderness Act. Nor does the law require us now to replicate those activities.

And recent research published in the journal Ecological Citizen has confirmed that the use of fire and other impacts by Indigenous people were fairly localized to Indigenous settlement areas and not universal across the entire landscape where many Wildernesses now are located.

Howard Zahniser, who thought deeply about Wilderness, often wrote that we humans need to approach Wilderness with humility and restraint. In his famous 1963 essay, he encouraged us to be “guardians, not gardeners” with respect to Wilderness, again utilizing humility and restraint to protect, not manipulate, Wilderness. The Forest Service approach would instead substitute the hubris and arrogance in the federal agencies for the humility and restraint that Wilderness needs, destroying the wildness that makes these areas so special in the first place. Instead of that approach, let’s instead continue trying to keep Wilderness wild.

Kevin Proescholdt is the Conservation Director for Wilderness Watch, a national wilderness conservation organization. He has worked in wilderness policy, legislation, and history for more than a half-century, including working to pass the 1978 Boundary Waters Canoe Area Wilderness Act through Congress and co-authoring the history of that struggle, Troubled Waters: The Fight for the Boundary Waters Canoe Area Wilderness.

Farming Out Forest Service Reforestation to American Forests Via Non-Competitive Grants- A Good Idea?

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I wrote about this awhile back, in terms of seed orchard manager positions, formerly held by FS employees with the development of long-term knowledge and experience, to hiring by American Forests.  Now, some of my best colleagues work for American Forests, and at the same time I have concerns, as I would for any organization that takes chunks from the FS workload via grants.

  1.  As a former FS employee who worked in reforestation, I wonder where the decision to outsource an FS program was made?  As I recall when other parts of the FS were outsourced, say fleet, the work was open to competitive bids.  As far as I can tell, the decision was not documented, and AF at the time, had most experience in urban forests and not so much in wildland reforestation.  So why..
    1. Farm out an important “growingly important due to climate change” part of the Forest Service- a part where long-term, on-the-ground knowledge is important? Why not wildland fire (to a non-competitive NGO?) or engineering, or recreation? Even the Park Service competes its concessionaires.
    2. Why has there not been more (any) press coverage of this asking these questions and about the accompanying reduction in federal employees?  After all, we are exposed to a constant barrage of “the FS got rid of people” being bad; at the same time one point of contracting out (or  “granting out”) is to reduce the workforce= because other people are actually doing the work.
    3. Why has there been no apparent concern by the federal employees’ union (or at least not mentioned in the press).  I could be wrong about this, so would like to hear from the union if that’s not the case.
    4. Why has neither political party been interested in this trend, or at least interested enough to request information on how much money has been spent and what has been accomplished?  Again, I would think that R’s might be interested in the non-competitive part and accomplishments, and the D’s in the reduction in FS employees, but it doesn’t seem anyone at all is interested. And yet, the Forest Service is in charge of the national forests and reforestation is key for some areas remaining in forest.  What could be more important to keep in-house?
  2.  I have a a bit of direct experience that leads me to additional concerns:
    1. Reforestation is a white-hatted issue .. why would an organization farm out it’s white-hatted issues and keep the other kind (mines, roads, etc.)  Again, compare this with wildfire.
    2. I’ve seen coverage that highlights speakers wearing AF gear, and FS employees in the background or not there at all.  Wouldn’t we want FS folks to be out front? Why not?
    3. The AF office wanted workers to do things that I didn’t think were the best use of joint funding.. is there anyone left in the FS knowledgeable enough to push back (or are there internal forces against pushing back)?
    4. Some AF folks appear to have little or no background in the body of work around reforestation. Perhaps that’s the FS’s own fault for letting too much of it go.  However, I did see them promoting ideas that were rejected in the past apparently unaware of those conversations. Are we paying them to learn what employees already know- plus covering percentages off the top?
    5. If it’s so important to farm out  a big chunk of work (and I’d argue some other Keystone work) to NGOs, why hasn’t the BLM done it?  Is this an argument for moving the FS to the (possibly more business-like) Interior?
  4.  Related-  if we look at American Forests, we see that what drives them are Social Equity, Climate, Water and Wildlife.
    1. Reforestation can have climate and social equity elements, but much of it on wildlands is plain old tree planting, genetics and nurseries, what RNGR provides the technical information for, and the programs that Forest Service employees and contractors used to conduct themselves.
    2. What value is added by introducing an NGO (and associated grants and agreements work, and NGO overhead)  to a system that seems to have been working?

It’s interesting to me that Congress asked for a report on transferring the FS from USDA to Interior (and the FS is contracting out that work, apparently).  But no Congressperson cared that a Forest Service program was more or less outsourced without competition, or public documentation or analysis?  Like I said, AF is a great group, but is it effective and efficient use of USG resources for USG purposes?

It does seem ironic to me that part of this $28-37 an hour position is to do an annual report of accomplishments.. and yet in my reaching out to various NGO’s with jointly hundreds of millions of USG bucks, I was unable to get annual accomplishment reports of where the bucks were going, and any accomplishments, and had to FOIA to get them.

To the FS, if you think this is a great way to run a government program, by farming out work non-competitively, I’d ask you to make the business case… somewhere AND develop public reporting mechanisms.  At first, I thought this was just a Biden Admin idea to stash IRA funds, but if the approach is supposed to be long-term- perhaps some attention to justification and transparency would be desirable.

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Below are the duties in the advertisement. Until recently, as I’ve said, this would have been a Forest Service position.

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Management of Seed Orchards and Seed Production Areas (70-85%)

    • Managing orchards, seed production areas, native plant production areas at the Francis Marion GRMA.
    • Managing orchards to produce cone and acorn crops, monitoring phenology, collecting, processing and shipping cones and acorns.
    • Managing seed orchard health, diversity and productivity.
    • Control of weeds and orchard understory and dead tree removal.
    • Application of herbicides and pesticides.
    • Operation and maintenance of tractor & skid steer with implements, tree shaker, lift boom and other heavy equipment.
    • Contracting and coordinating orchard operations such as thinning, road maintenance, and fencing.
    • Assisting with writing genetic management strategies.
    • Application of fertilization regimes to meet project objectives.
    • Monitoring for insect and disease damage, determining treatment options, and implementing treatments.
    • Establishing new seed orchard plantings.
    • Propagating and cultivating plant species used in revegetation projects (e.g., rivercane).
    • Propagating and cultivating native plant species with conservation or cultural significance
    • Collecting and grafting of scion to rootstock and out-planting.
    • Establishing and maintaining tree conservation plantings.
    • Collecting soil or foliar samples for nutrient analysis and interpreting results.
    • Collecting, maintaining, and managing data gathered on orchard trees and cone crops.
    • Recording growth and phenology measurements.
    • Managing facilities and equipment associated with seed orchards.
    • Assisting the USDA Forest Service in developing work plans for the GRMA and production or quality standards.
    • Maintaining and updating Seed Orchard Management Plan and Seed Orchard Technical Training Guides.
    • Mapping and tagging trees in the orchard.
    • Creation of annual reports outlining orchard activities and accomplishments

Management of Progeny Field Tests (0 – 15%)

    • Managing progeny field tests in partnership with USDA Forest Service silviculturists.
    • Maintaining and monitoring for damaging agents and determining the need for control methods.
    • Monitoring growth for cone production.
    • Monitoring insects and diseases or other genetically controlled damaging agents.
    • Collecting soil and foliage samples.

Partnership & Coordination (10%)

    • Serving as the on-site liaison between American Forests and the USDA Forest Service.
    • Coordinating closely with Forest Service staff, including regional geneticist, zone geneticist, line officers and silviculturists, to align seed production goals with regional and national priorities.
    • Submitting timely progress reports, data summaries, and documentation, as needed.
    • Participating in regional meetings and events as needed to support reforestation and seed strategy goals
    • Participating in training and safety meetings
    • Maintaining compliance with environmental guidelines.

Other Duties as Assigned (5%):

    • Reviewing, recommending, and initiating development activities at the GRMA in cooperation with the Regional Geneticist. Preparing presentations and/or reports to explain overall genetic resource management and seed orchards.
    • Assisting with developing budgetary needs.
    • Co-hosting seed orchard management workshops.
    • Assisting American Forests’ staff in the delivery of relevant in-person meetings, conferences, and events.
    • Conducting public presentations at conferences and meetings.
    • Planning and leading site visits and field tours as appropriate.

 

Does Anyone Know? Newsom’s Emergency Proclamation and What “Fast-Tracking” Does?

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Dashboards are cool, but a .24 acre project?

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I always like watching California goings-on, because it removes the partisan political angle from many of our issues.

We’ve discussed the federal government declaring a wildfire emergency and streamlining via ESD (emergency situation determinations).

Governor Newsom apparently also issued an emergency proclamation last year.

Governor Newsom issued an emergency proclamation on March 1 to streamline wildfire prevention projects following the Los Angeles firestorms, and today he extended a key provision to maintain momentum on that work. To date, California has fast-tracked more than 200 wildfire safety projects statewide, with approvals now happening in as little as 30 days instead of a year or more.

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Following Governor Newsom’s wildfire emergency proclamation, state agencies, including the California Natural Resources Agency and the California Environmental Protection Agency, have coordinated to streamline permitting and cut red tape for high-priority wildfire-safety projects while maintaining essential environmental protections. Through this fast-track process, projects are now being approved in as little as 30 days, saving a year or more of review time for more complex projects. This has helped local governments, tribes, resource conservation districts, electrical utilities, and non-profits secure permits quickly, enabling critical safety projects to be implemented on-the-ground faster than ever before.

To date, 218 projects covering more than 40,000 acres have been approved statewide and half are already underway or have been completed. There are 50 approved projects in Southern California, including 10 projects covering nearly 1,000 acres in Los Angeles County.

Notable projects include:

  • A 600-plus-acre fuels reduction project led by the Mountains Recreation and Conservation Authority near the Palisades Fire footprint in Los Angeles County.
  • The nearly 3,000-acre Scott Valley–Callahan Fuels Reduction and Forest Resiliency Project in Siskiyou County is removing hazardous fuels and creating strategic fuel breaks to protect local communities.

The state is ensuring full transparency into all projects approved for fast-tracked permitting through this easy-to-navigate online dashboard.

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A new Statewide Fuels Reduction Environmental Protection Plan (EPP) has been developed to enable critical wildfire safety projects to proceed expeditiously while protecting public health and the environment. The EPP requires applicants to comply with best management practices and measures to minimize impacts on environmental resources while completing fuels reduction projects, thereby safeguarding water and air quality, tribal cultural resources, and special-status species and their habitats.

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I know there are Californians out there.. can anyone explain what the streamlining is, how the EPP helps, and if you think there are any lessons learned applicable to the federal sphere?

Wildfire Drones Come to Aspen Fire Department

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Aspen Fire Protection District chief Jake Andersen (left) and Seneca CEO Stuart Landesberg pose with a fire suppression drone in February 2026.

People might wonder…. how does climate/wildfire models incorporate changes in wildfire suppression technology?  The answer is, of course, they don’t.  Aspen Fire Protection District in Colorado (Aspen is a financially well-off mountain community) is experimenting with new technologies. I heard about this from The Hotshot Wakeup who was thinking ahead to drone bases scattered throughout forests .  From Aspen Public Radio.

The Aspen Fire Protection District is adding autonomous drones to its arsenal of firefighting technology.

The self-flying helicopters are made by Seneca, a northern California startup that launched in October.

Aspen Fire will become the initial customer of the company’s fire suppression drones, which it believes are the first of their kind.

“We’ve talked to every one of the chiefs from the largest departments in California,” said Stuart Landesberg, Seneca’s CEO. “We work with the former U.S. Fire Administrator, the folks at Cal Fire — if there were another player doing this, we would know.”

The mini-helicopters can be controlled with an iPad, but they find their own way to a fire using self-navigating technology and infrared sensors.

They’re light enough to be lifted by hand and can fit in the back of a pickup truck. They carry 12 gallons of water, which can either be sprayed as water or mixed with a solution to shoot out 60 gallons of foam.

That’s not enough to put out a raging wildfire.

But Aspen Fire chief Jake Andersen said it could be a “game changer” for suppressing small fires that start in places without road access.

“Historically, if there was something up the ridge that it might take you an hour or two to get there, that was just what it was,” Andersen said. “And this can decrease that time to water on the fire by a substantial amount.”

Landesberg thinks that response time can be cut to ten minutes.

“If you had a ten minute response time from the moment of first detection across Colorado, across any area, the risk profile goes down so much,” Landesberg said. “You’re seeing fire intensity increasing, but the number of firefighters is not keeping pace, so the only way that we can solve the problem is by leveraging technology, especially to get there earlier.”

Aspen will be getting a “strike force” of five drones, which it hopes to start using this summer.

The idea is that while one drone is flying back to base to get refilled and fresh batteries, the next can move toward the fire and pick up where the first left off.

“If you have a close enough turnaround rate, you can just kind of keep them going,” Andersen said.

Andersen said there’s still a lot of details to be worked out with agencies like the Federal Aviation Administration, the Department of Interior and the U.S. Forest Service.

And since it’s unproven technology, the department is relying on private donors to fund the pilot project. Andersen said they’ve received a partial contribution from the Herd Family Foundation, but are still looking for additional donors.

Before folks get concerns about “putting out too many fires”, it seems to me that greater control over unwanted fires might also be uesful when wanted fires threaten to turn into unwanted fires. But then,  I’m not a fire person.

Federal Lands Litigation – update through March 18, 2026

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FOREST SERVICE

Court decision in Alaska Forest Association v. U. S. Department of Agriculture (D. Alaska)

On March 12, in a lawsuit brought by southeast Alaska timber interests, the district court rejected an argument that the Tongass Timber Reform Act and related laws compel the Forest Service to pursue harvesting goals that meet market demand. The lawsuit targeted the Biden administration-era “Southeast Alaska Sustainability Strategy” announced in 2021, which pledged to end large-scale old-growth timber sales on the Tongass.   The court dismissed the case after it determined, “Whether the harvest levels are designed to actually meet market demand is a discretionary agency decision, not a mandatory requirement imposed by the TTRA or the Forest Service.”  The court said the law’s “seek to provide” language comes with a key qualifier, that the Forest Service must also balance timber with other uses.  The court also rejected claims that the federal government could be forced—under the Administrative Procedure Act—to produce the 2016 Forest Plan’s projected timber sale quantities, agreeing with the Forest Service’s position that timber volume projections are “at most aspirational ‘will do’ statements.”  The dismissal order is here.

Preliminary injunction denial upheld in Native Ecosystems Council v. Webber (D. Montana)

On March 13, the 9th Circuit ruled that the Forest Service adequately explained how the project complies with the Helena-Lewis and Clark National Forest management plan.  The 9th Circuit upheld a lower court’s decision to deny a preliminary injunction, finding that the agency provided sufficient analysis and data behind its approval of the Wood Duck logging project in compliance with both NEPA and NFMA.  The district court opinion was discussed here.

Preliminary injunction denial upheld in Arizona Mining Reform Coalition v. U. S. Forest Service (9th Cir.)

On Friday the 13th, the 9th Circuit affirmed the district court decision and denied the requests by plaintiffs in three consolidated lawsuits for a preliminary injunction against a land exchange that would transfer a Native American tribal sacred site managed by the Forest Service to Resolution Copper Company to mine for copper.  The court held that the Forest Service likely complied with NEPA and adequately consulted with affected tribes about the Oak Flat area, concluding, “Despite those grave harms to Native religious practice, Congress has chosen to transfer this land, and plaintiffs have not raised any viable challenges to that decision.”  The article includes a link to the opinion.  One of the parties has petitioned the Supreme Court for review, according to this article.

New lawsuit (D. Montana)

A lawsuit has been filed by the Gallatin Wildlife Association, the Alliance for the Wild Rockies and the Native Ecosystems Council, as well as a local resident who is a retired Forest Service whitebark pine researcher, against a proposed thinning and logging project on the Custer Gallatin National Forest north of Yellowstone National Park.  The Forest Service says the project is to protect Cooke City from wildfire.  Plaintiffs oppose “daylight thinning,” which involves removing trees near federally threatened whitebark pines, which they say is not backed by scientific research, and they argue that the Forest Service “fails to quantify the extent of that harm and how it will affect whitebark pine recruitment.”  Lynx habitat and grizzly bears are also concerns.

New lawsuit (AI summary of Law 360 summary)

“The Nez Perce Tribe is suing the U.S. Forest Service, alleging that approval of the $2 billion Stibnite Gold Project in Idaho violates bedrock environmental laws, including NEPA, and infringes upon treaty rights. The lawsuit claims the agency failed to consider alternatives, threatening salmon habitat, water quality, and tribal hunting/gathering rights. The Tribe claims the USFS violated the National Environmental Policy Act (NEPA), the National Forest Management Act, and the Forest Service Organic Act by using an unreasonably narrow “purpose and need” statement that favored the applicant, Perpetua Resources Corp. The project is expected to exacerbate existing arsenic and mercury contamination, destroy wetlands, and threaten Endangered Species Act-listed salmon and bull trout. The project, which is scheduled for construction in 2028, is also facing separate lawsuits from a coalition of conservation groups.”  Those were discussed here and here.

BLM

Court decision in Powder River Resource Council v. U. S. Department of the Interior (D. D.C.)

On February 27, the district court held that the BLM violated NEPA when it eliminated “reduced rate of development and greenhouse gas reduction alternatives” without further analysis.  It also should not have eliminated from further analysis an alternative limiting the total number of wells developed annually, finding it “not inconsistent with the agency’s stated purpose and need for agency action.”  This decision was made in 2020, and the court did not accept new claims against a 2025 supplemental EA and permits based on it that are currently operating.  The article includes a link to the opinion.

Preliminary injunction granted in Conserve Southwest Utah v. U. S. Department of the Interior (D. D.C.)

On March 1, the district court granted a motion for a preliminary injunction against the Northern Corridor highway through the Red Cliffs National Conservation Area, which has a high density of federally threatened Mohave desert tortoises.  The court found that the plaintiffs have demonstrated a likelihood of success in at least two of its claims.  One is that the BLM did not adequately explain why it reversed its previous decision from the prior administration that the Northern Corridor was unlawful.  The other involved compliance with the Omnibus Public Land Management Act, which is the statute governing the management of the Conservation Area.  The article includes a link to the complaint.

New lawsuit:  Center for Biological Diversity v. Germann (D. Montana)

On March 2, seven conservation groups filed suit against the BLM’s 2025 Records of Decision approving Resource Management Plan Amendments for greater sage-grouse in Montana, California, Colorado, Idaho, Nevada, North Dakota, South Dakota, Utah, and Wyoming.  These amendments would replace 2015 plan amendments that were then cited as adequate regulatory mechanisms to eliminate the need to list sage-grouse under the Endangered Species Act.  (The Forest Service has also adopted the 2015 sage-grouse amendments, but not the BLM’s 2025 changes.)

The BLM’s 2025 amendments make a number of changes that reduce protection provided to sage-grouse in the 2015 plans.  These include, according to the plaintiffs, “essential pillars of the 2015 Plans, such as prioritization of oil and gas leasing outside sage-grouse habitat, a mineral withdrawal and non-waivable development prohibitions for crucial habitat, and compensatory mitigation to offset any new habitat losses.”  They add, “These changes lack any scientific basis and will inexorably accelerate the sage grouse’s downward spiral toward extinction.”

The complaint alleges violations of FLPMA, NEPA and the APA.  They involve degrading sage-grouse habitat, failing to adequately explain why the changes were made, not addressing the best available science, inadequate NEPA effects analysis, deferring to states and allowing differences between states (as well as being inconsistent with Forest Service plans), and failing to comply with requirements for identifying Areas of Critical Environmental Concern.  They also did not prepare a supplemental EIS after making many changes after the FEIS, and did not provide an opportunity for public comments on changes after the protest period.  The article has a link to the complaint.

New lawsuit:  Applegate Siskiyou Alliance v. U. S. Bureau of Land Management (D. Oregon)

On March 3, Applegate Siskiyou Alliance and Klamath Forest Alliance took the BLM to court over its September 2025 EA/FONSI for the Ashland 2025 Strategic Operations for Safety (“Ashland SOS”) project. The lawsuit also encompasses four Decision Records authorizing logging activities pursuant to the Ashland SOS EA: Chopper Styx, Holcomb Hollow, Apple Saws, and Tom Bone.  The BLM is currently implementing the Project allegedly “in a materially different manner which has different and unanalyzed effects.” Issues include water quality and removal of hardwood trees.  Plaintiffs also claim the Project violates FLPMA because it is not in compliance with the Southwestern Oregon Resource Management Plan’s requirements to protect future nesting, roosting and foraging habitat for ESA-listed Northern Spotted Owls.  The complaint is here.

Case dismissed in Sovereign Iñupiat for a Living Arctic v. Burgum (D. Alaska)

On March 6, plaintiffs in this case filed a notice of dismissal following the district court’s denial of a preliminary injunction (described here), and after they received some assurance that their concern for adequate snow cover would be addressed.  The article links to the notice.  Other related cases remain pending (and see below).

New lawsuit:  Northern Alaska Environmental Center v. Burgum (D. Alaska)

Ten conservation groups have sued the Trump administration over its decision to remove decades-old protections from 2.1 million acres of federal land in Interior Alaska along the 800-mile trans-Alaska oil pipeline known as the Dalton Utility Corridor.  A February 25 Public Land Order partially revoked two prior orders protecting the corridor, and was based on an EIS in 2024.  The complaint alleges that opening the land to development or disposal violates the Alaska Native Claims Settlement Act, the Alaska National Interest Lands Conservation Act, FLPMA, NEPA and the APA.   The article includes a link to the Public Land Order and the complaint.

Preliminary injunction and TRO denied in Alliance for the Wild Rockies v. James (D. Montana)

On March 11, the district court found that plaintiffs showed a likelihood of success on claims the BLM acted arbitrarily by failing to disclose baseline sage grouse data and conduct a cumulative impacts analysis when it authorized grazing, livestock management and range improvement projects in the Grasshopper Watershed.  However, the court found that they had failed to demonstrate irreparable harm because the status of sage-grouse in the watershed was unclear.  It stated, “The court recognizes that it proves likely that defendants’ own failures to include sufficient data in the [environmental assessment] have contributed to plaintiffs’ lack of information.  The burden remains on plaintiffs, however, to demonstrate irreparable harm.”  The article includes a link to the order.

Preliminary injunction in Nuiqsut Trilateral, Inc. v. Burgum (D. Alaska)

On March 16, the district court enjoined the removal of a land agreement, known as the Nuiqsut Trilateral right of way, which gave Nuiqsut residents some control over oil development on about a million acres in the Teshekpuk Lake area.  The court held that this was a property right negotiated in exchange for support from Nuiqsut entities and leaders for another (Willow) project. Inability to lease in this area would affect an impending lease sale in the National Petroleum Reserve.  The article includes a link to the opinion.

ENDANGERED SPECIES

Settlement in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On March 17, The U.S. Fish and Wildlife Service agreed to a court-ordered deadline requiring the agency to reach a decision on Endangered Species Act protections for the Railroad Valley toad by May 31, 2028.  In 2024, the U.S. Fish and Wildlife Service found there were credible threats to the toads’ existence that warranted further consideration for listing, including oil and gas extraction in Railroad Valley, and proposals for lithium extraction.  This case was discussed here.

New lawsuit:  Center for Biological Diversity v. Burgum (D. D.C.)

On March 18, plaintiffs sought “declaratory as well as emergency and permanent injunctive relief prohibiting the meeting” of the Endangered Species Committee, scheduled for March 31.  The Committee (often referred to as the “God Squad,” or sometimes as the “extinction committee”) will be asked to waive protections for listed species in the Gulf of Mexico in to allow for more offshore oil and gas drilling. In the 48 years since its creation, the Committee has adjudicated only three exemption applications.  Plaintiffs claim the Department of the Interior has not followed proper procedures for such a meeting.  The article includes a link to the complaint.

OTHER

New lawsuit:  Montana Environmental Information Center v. Burgum (D. Montana)

On March 3, MEIC, Center for Biological Diversity and WildEarth Guardians challenged an expansion of the Bull Mountains coal mine on private land in central Montana, arguing that the federal government has used a “sham” energy emergency to cut the public out of the environmental review process required by federal law.  The plaintiffs argue that the Interior Department’s Office of Surface Mining rushed its environmental review in response to a presidential executive order and newly abbreviated NEPA procedures that did not include a draft EIS.  They challenge the lack of public involvement and the analysis of mine dewatering.  The article includes a link to the complaint.

Preliminary injunction in Institute for Applied Ecology v. Burgum (D. Oregon)

On March 12, the district court issued a preliminary injunction and ordered the Interior Department to restore $14 million in grants awarded to groups to conduct conservation work across the country.  The court found that the grant termination letters were an unlawful move to stifle activists thought to support diversity, equity and inclusion (DEI) values, violating the Constitution’s First Amendment.  (None of the grants went toward implementing or funding DEI initiatives.)  The article includes a link to the opinion.

 

 

Two Sierra Forests’ Purpose and Need for Veg Treatments, Plus a Look at Thinning in Roadless

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Jon and I have been discussing  how NEPA docs should display the uncertainty (probability) of success of fuel treatments.  Should it be a paragraph somewhere saying “under certain conditions, fuel treatments tend not to be effective at changing fire behavior in the ways we want to change it”, and describing the conditions?

Well, I thought it would be interesting to see what people are putting in their environmental documents about that.  So I went to the Seral EIS from the Stanislaus NF.  Now one thing that’s interesting is how different the discussion feels in the Sierra compared to, say, Montana.

Here is what I found (my interpretation so you can check for yourself).  It appears that the primary rationale for veg treatments in that EIS was… HRV (possibly NRV, I’ve never figured out the difference).  Conveniently, the PSW had issued a GTR about past conditions.

So the Stanislaus folks seemed to be making the case (apologies to them if I got this wrong). 1. Plans and the planning rule tell us to move to HRV. 2. That is different density and age classes than what they have. 3. So they need to move in that direction by reducing density. 3. This should be better for wildfire resilience as well as forest health (because healthier trees are more resistant to bugs) and 4. By the way, this should also help with wildfire, and they have complicated models about flame length and so on, that they are using.

So I wonder how other forests are describing their purpose and need?  It seems like the 2012 Planning Rule would inevitably lead to a need for de-densification after 100 years of fire suppression.  Maybe you all could take a look at their neighboring forest’s EAs or EIS’s for vegetation management and see how the purpose and need is framed.

And if it turns out that H-NRV vegetation-wise is  not a good goal.. maybe the 2012 Rule needs to be amended (or NFMA itself).

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This is from the FEIS for the North Yuba Landscape Resilience Project:

Treatment Types and Methods
The Proposed Action would apply treatments in different emphasis areas to meet objectives for enhancing forest resilience, restoring fire dynamics, and conserving biodiversity as described below and shown in Figure 2-1. The treatment scenario presented under the Proposed Action identifies approximately 146,000 acres for treatment. Treatments would be conducted in areas where existing conditions triggered a need to reduce fuel loading, reduce stand densities, develop large trees
(particularly fire-resistance pines and oak), create heterogeneous stand structures, and promote tree species composition aligned with an active fire regime.

Vegetation and fuels management treatments proposed include prescribed fire, thinning from below, variable density thinning, creation of 1- to 3- acre openings, strategic tree planting, and sanitation and stand improvement. The Proposed Action addresses a single round of treatments in each location. In this case a “single round” consists of all actions needed to achieve the target vegetation and fuels condition at the treatment site. Achieving target conditions may require multiple “entries”; for example, one entry to conduct thinning frombelow, then another entry to use prescribed fire to reduce fuel loads. Additional entries could also
result from post treatment monitoring indicating that a treatment did not achieve the desired result and further thinning, burning, or other activity is needed to achieve target conditions. However, once target conditions are achieved and restoration actions are complete (e.g., reclamation of temporary roads), a “single round” of treatment is considered complete and no further entries, treatment, or management are part of the action analyzed in this EIS.

Prescribed fire would include understory burning and pile or jackpot burning of fuels. Thinning from below focuses on removing trees from the lower canopy, thereby retaining larger overstory trees in the stand. Variable density thinning is a form of uneven-aged management designed to produce a mosaic of individual trees, clumps of trees, and small openings to enhance stand resilience to severe disturbances, create structural heterogeneity, and foster development of diverse tree species. Creation  of 1- to 3- acre openings would be used to establish structural heterogeneity common in forest systems under a natural disturbance regime (Safford and Stevens 2017). Post-treatment density targets would be set based on residual basal area. Strategic tree planting of conifer and/or hardwood species would occur within approximately 10 to 20% of the 1- to 3-acre openings created while the remainder of openings created would not be planted. Sanitation and stand improvement would include the removal of mistletoe-infected overstory trees in past regeneration cuts in the red fir forest type (see Appendix A for additional detail on these treatments).

Yes, they are using variable density treatments that were deemed controversial (about wildfires) in the Bark vs. USFS case in Oregon. So I decided to take a look at the response to comments.

I never got to that specific response to that comment (fuel treatments don’t work), my rabbit trail energies ran out..but I’d guess it’s well done and interesting. Meanwhile I did find a response to some comments about what is actually allowed under the 2001 Roadless Rule, apparently not what some commenters think.

FEIS Chapter 3, Section 3.15 “Other Required Disclosures” addresses the Project’s compliance with the 2001 Roadless Area Conservation Rule. This section provides rationale for determining what constitutes generally small diameter timber in the East and West Yuba IRAs (36 CFR 294.13(b)(1)), explains why removal of generally small diameter timber is needed to maintain or restore the characteristics of ecosystem composition and structure (36 CFR 294.13(b)(1)(ii)), and describes how removal of generally small diameter timber would maintain or improve roadless area characteristics (36 CFR 294.13(b)(1)). Removing generally small diameter timber in the IRAs would meet multiple objectives, including reducing the risk of uncharacteristic wildfire effects, enhancing forest resilience
to reduce the risk of extensive tree mortality in the event of drought and associated insect infestation, and re-introducing fire in the IRAs, which has been largely absent for over a century.
A definition of generally small diameter timber is not specifically included in the Roadless Rule. “Such determinations are best made through project specific or land and resource management plan NEPA analyses, as guided by ecological considerations” (66 FR 3257). The Rule’s preamble states: “…all such determinations of what constitutes ‘‘generally small diameter timber’’ will consider how the cutting or removal of various size classes of trees would affect the potential for future
development of the stand, and the characteristics and interrelationships of plant and animal communities associated with the site and the overall landscape. Site productivity due to factors such as moisture and elevational gradients, site aspect, and soil types will be considered, as well as how such cutting or removal of various size classes of standing or down timber would mimic the role and legacies of natural disturbance regimes in providing the habitat patches, connectivity, and structural diversity critical to maintaining biological diversity” (66 FR 3257). As detailed in FEIS Chapter 3, Section 3.15, the rationale for determining generally small diameter timber considers site productivity; tree growth rates and maximum tree size; stand development, including the risk of uncharacteristic effects from wildfire and drought; and opportunities for re-introducing fire under low to moderate intensities that more closely mimic the natural fire regime.

The Sierra Nevada Forest Plan Amendment Record of Decision (SNFPA ROD 2004), which amended the Tahoe National Forest Land and Resource Management Plan, contains standards and guidelines for mechanical thinning treatments designed to retain larger trees, basal area, canopy cover, and stand structure (pp. 50 -51). The basis for applying these forest-wide standards and guidelines is California Wildlife Habitat Relationship (CWHR) classes, specifically for mature forest
habitat (CWHR types 4M, 4D, 5M, 5D, and 6). The proposed project-specific amendments for the Environmental Impact Statement – North Yuba Landscape Resilience Project

Based on CWHR tree size classification utilized in the Forest Plan, trees less than 24 inches dbh are within the small tree size class.
Existing and post-treatment diameter distributions for the IRA forest stands presented in the FEIS have been updated to include all tree sizes, including trees less than 10 inches dbh. The mid-point of the diameter distribution, quadratic mean diameter, median diameter, and mean diameter, both under existing conditions and post-treatment, are also displayed. Explanatory text has been added to the proposed action (FEIS Appendix A) and FEIS Chapter 3, Section 3.15 to clarify that thinning from below in the IRAs would involve selective removal of trees less than 24 inches dbh: not all trees less than 24 inches dbh would be removed. Some trees less than 24 inches dbh would be retained within the thinning units based on health of individual trees and crown position (healthy dominant and codominant trees less than 24 inches would be retained) and species (healthy pines would be retained). FEIS Figure 3.15-2. Immediate Post-Treatment Tree Size Class Distribution in Sampled IRA Forest Stands has been updated to illustrate selective removal of trees less than 24 inches dbh in the IRA thinning from below treatments.

As a Roadless geek, I thought this was very nicely laid out.

Schifman Suggestions for SPEED Act Improvements: Focus on PIs

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It’s not often that we get the views of former DOJ trial attorneys on permitting. Ben Schifman wrote this piece on Green Tape.

In 2021, after investing tens of millions of dollars and a decade of development, Ormat Technologies received federal approval to build the Dixie Meadows Geothermal Project: a zero-emission, baseload power project located on Bureau of Land Management (BLM) land. Two days before Ormat planned to break ground, a federal judge halted the project; it remains unfinished to this day.

The lawsuit challenging the project alleged (among other things) that the environmental review under the National Environmental Policy Act (NEPA) was not sufficient. From the bench, the Judge was unusually candid about whether he thought the Plaintiffs were likely to prevail on this claim, stating: “I really can’t say as I sit here whether there is a strong likelihood of success on the merits.” He issued a preliminary injunction — stopping the project — regardless.

The Ninth Circuit ultimately stayed the injunction, and Ormat began construction. But the “litigation doom loop” — a cycle of agency review, litigation, judicial remedy, and then more review — had begun. Following the injunction, the Plaintiffs sought an emergency endangered species listing for the Dixie Valley toad in April 2022, which created an entirely new permitting obstacle. Ormat again halted construction, and then downsized the facility to 20% of its original capacity. In 2023 BLM began a supplemental NEPA review. As of late 2025, more than four years after BLM’s original approval, and a decade after Ormat’s permit application, the project remains unbuilt. Ormat is now suing the Fish and Wildlife Service over the toad’s listing, while BLM has attempted to fast-track the project under emergency permitting procedures — which have themselves drawn threats of new litigation.

A single preliminary injunction, issued by a judge who openly doubted the plaintiffs’ ultimate likelihood of success in their lawsuit, triggered a chain of events that may have effectively killed a zero-carbon energy project bringing much needed 24-7 baseload power to the grid — all before any court determined that BLM actually violated the law.

This is an example of the litigation doom loop. And because the SPEED Act, the most significant NEPA reform effort in decades, does not address preliminary injunctions, it doesn’t fully solve it — even in NEPA cases.

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And here are some of his suggested solutions:

Here are some complementary reforms Congress should consider, which I describe in more detail in a longer piece.

1. Prompt filing requirement

Preliminary injunctions are especially damaging when a plaintiff waits months or years after the challenged decision is made — often after construction has begun — for the purpose of maximizing disruption or leverage.

Existing case law generally recognizes that a plaintiff’s delay in seeking emergency relief undermines a claim of irreparable harm. For instance, in Quince Orchard Valley Citizens Association v. Hodel, the Fourth Circuit held that a plaintiff’s “unexcused delay” in seeking a preliminary injunction is strong evidence that the alleged harm is not actually “irreparable.”9 The logic is intuitive: if an injury is truly imminent and irreparable, a diligent plaintiff would not sit on their rights for months.

But because “promptness” is currently just one of many discretionary factors courts weigh, it hasn’t reliably deterred strategic delay. Congress should codify a rebuttable presumption that any motion for a preliminary injunction filed more than 30 days after the challenged final agency action carries a presumption that the harm is not irreparable. Plaintiffs could rebut this presumption by showing that their delay was not strategic but rather caused by inadequate public notice or significant new information that was not reasonably discoverable within the 30-day window.

This would turn a discretionary judicial factor into a clear legal deadline, motivating opponents to bring challenges forward immediately so they can be resolved more promptly and with less disruption.

2. Multiplicative merit standard

Under current law, to obtain a preliminary injunction, a plaintiff must show a “likelihood of success on the merits.” But courts often evaluate this factor by looking at the plaintiff’s strongest single argument — even when the plaintiff must clear several independent legal hurdles to ultimately prevail.10

The Fourth Circuit identified this problem in the 2025 decision American Federation of Teachers v. Bessent.11Judge Richardson, writing for the majority, argued that when a plaintiff must prevail on several independent, dispositive issues — such as establishing standing, proving final agency action, and winning on the merits — the overall likelihood of success is not the probability of winning the strongest argument. It is the product of the probabilities of succeeding on every dispositive issue.

As the court illustrated, even if a plaintiff is a 3:1 favorite (meaning a 75% chance) on five distinct legal hurdles, the probability of running the table on all five is only about 24%. A plaintiff who is likely to win any single issue can still be a 3:1 underdog in the case overall.

Congress should codify this framework, requiring courts to determine the cumulative probability of success across all independent, dispositive issues and issue written findings specifying the estimated probability assigned to each. This ensures that preliminary injunctions — “extraordinary remedies never awarded as of right” — are reserved for cases where the plaintiff is truly likely to prevail on the merits of the case, not just on a single high-profile merits issue the court may never reach.

3. Prejudicial error standard for preliminary injunctions

Under current law, plaintiffs can obtain injunctions to halt work based on procedural errors that likely wouldn’t change the outcome. If an environmental assessment omitted discussion of an issue but the agency would have reached the same decision anyway, what purpose is served by a preliminary injunction halting the project?

Congress should require plaintiffs seeking preliminary injunctions in NEPA cases to demonstrate not just a likelihood of success in showing a NEPA violation, but a likelihood of success in showing the violation was prejudicial — meaning there’s a reasonable possibility the error affected the agency’s substantive decision.

Requiring plaintiffs to show prejudice is consistent with the Administrative Procedure Act and with recent dicta from the Supreme Court in the recent Seven County Infrastructure Coalition case that I have written about here.12 This reform would preserve preliminary relief for cases where the NEPA violation genuinely calls the agency’s decision into question.

Reforming preliminary injunctions in NEPA cases isn’t enough

The reforms proposed above would help prevent issuance of preliminary injunctions that are brought in cases where a plaintiff is unlikely to prevail or where irreparable harm is not likely. But reforming preliminary injunction standards in NEPA cases alone is not sufficient to break the “doom loop” that limits America’s ability to build infrastructure. Most major infrastructure projects that are subject to litigation are challenged under multiple statutes simultaneously: NEPA alongside the Endangered Species Act, the Clean Water Act, the National Historic Preservation Act, and others. The Dixie Meadows lawsuit — which involved numerous claims aside from those brought under NEPA — illustrates this dynamic.

NEPA-specific reforms like the SPEED Act cannot reach injunctions grounded in other federal statutes, and real-world litigation rarely presents pure NEPA claims. Still, NEPA is among the most frequently litigated permitting statutes, and it is the claim most commonly deployed for strategic delay precisely because its procedural nature makes violations easy to allege and difficult to disprove quickly. Reforming preliminary injunctive relief in NEPA cases would narrow the attack surface available to litigants pursuing delay, and provide a blueprint for similar reforms to remedies available through other laws.

While permitting reform efforts like the SPEED Act are wise to focus on final judgments, they should not be blind to preliminary remedies. Imposing reasonable limits at each stage can ensure that NEPA litigation serves its intended purpose — allowing agencies and the public to be informed about the environmental impacts of federal decisions — rather than functioning as a mechanism to delay the infrastructure our country needs to meet the challenges of the coming century.

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Schifman also says that judicial deadlines have a history of not working.

But will courts comply with these deadlines? History suggests they likely will not.

Congress has tried mandating judicial deadlines before. The Speedy Trial Act generally requires criminal trials to begin within 70 days of indictment — yet courts routinely grant continuances.5 The Antiterrorism and Effective Death Penalty Act (AEDPA) imposed timelines for habeas corpus decisions; courts regularly exceed them.6 The Supreme Court has characterized such statutory deadlines “directives” rather than rigid jurisdictional limits.7

Federal judges have existing dockets and competing priorities — including criminal cases where there is not only a statutory but also a constitutional right to a speedy trial. Judges also have limited resources. District court filings have grown by 30% since 1990 but judgeships increased by only 4% in that time. The number of civil cases pending more than three years has risen 346% in the last 20 years.

Under these circumstances, Congressional deadlines without accompanying resources for the judiciary are unlikely to make a difference. Federal judges have lifetime tenure and Congress has never impeached a federal judge over missed deadlines (indeed, only 15 judges have ever been impeached). Ultimately, nothing in the SPEED Act guarantees courts will adhere to its deadlines. And if they don’t, a preliminary injunction granted at the start of a lawsuit could last for months — or even years

Building Trust for Prescribed Fire: More Data, Clearer Words

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First of all, I’ll just say that I am not a trust expert.  At the same time, most things I’ve read about trust focus on transparency and accountability.  Transparency would mean possibly what the public wants to know, in the boxes the public wants to know it.  Hence my long-standing support for a People’s Database.

Let’s go back to Anon.R.One’s comment:

Related, ‘managed fire’ as term is out for this year, leaving just wildfire or prescribed fire classifications. Additionally, ‘full suppression’ and ‘less than full suppression’ are being replaced with direct and and indirect strategies, respectively.

If the FS (and USWFS which is on the same page, hopefully) haven’t changed their minds, I think that this is a very bad idea, as I said when the Wildfire Commission came up with that.  To my mind, if people are concerned about something (MF) more than something else (PF) and these two things are quite different (at least in terms of pre-planning and public input) and you decide to merge them in terminology, it seems a bit like sweeping the area of concern under the rug via buzzword creation.

I’m not really sure about direct and indirect either, because it seems to me that it could be confused with direct and indirect tactics.

Note, think fire people are great, always have, and some of my best friends have been FIOs. I’d say “let’s make the FIO’s job easier by developing terminology that is consistent across agencies AND is comprehensible to interested members of the public.” Also, in retrospect, I think vegetation management might have been more successful at developing public support if we had developed more user-friendly words than silvicultural terminology.

Jim Z. talked about his experience that many blow-ups of PFs were not due to bad weather predictions but lack of monitoring.  Conceivably new technologies can help with monitoring.  Shouldn’t there be an annual or biennial report on what PFs went to wildfires (not just one PF at a time, or not just after Hermit’s Peak Calf Canyon)?  Otherwise how are we to know what kind of continuous improvement efforts are going on?  Such a report would convey to the public “we’re on this thing, it’s important to us not only to do PF but to show you all what went wrong this year and what we’re going to do to fix it.”

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Let’s take a look at what some public health folks are saying about trust.

Forming relationships may be the most important way to create trust, said Castrucci. “Who we live with and who we talk to is who we trust.”

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“Seeing science work but not seeing it work for you erodes trust,” he said, and he told the audience to look around. “We are sitting in this room wearing suits, putting up slides filled with beautiful data. And we are looking down from a literal ivory tower,” he said.

“Good communication is not going to dig us out of this hole. If we want to rebuild trust, one thing that will help us more than anything else — it’s really quite simple — is to talk to people. Outside of rooms like this.”

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“Medical practitioners need to understand harm so they don’t repeat it,” Ramos said. By acknowledging past wrongs, we can create a more trustworthy future, he added.

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As the co-host of the podcast, “Why Should I Trust You?” Brinda Adhikari moderates conversations between people who are skeptical of the health system, like supporters of the Make America Healthy Again movement, and people from public health. If we can’t come together and talk, trust is not possible, Adhikari said.

“I love the idea of going into the community,” Adhikari said. “But rather than righting wrongs of the past, work with them on the problems of the now and the future.”

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What was interesting to me about this is that it’s mostly about talking, and relating, and doesn’t have the concept of giving people the data and showing them how your approaches are improving over time.  I’m not even sure that the community issued a report about what they did right and wrong in responding to Covid and recommendations for improvement.  It reminds me a bit of the Stephen R.  Covey quote  “you can’t talk yourself out of a problem you behaved your way into.”

Prescribed Fire Escapes and a Prescribed Fire Dashboard

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This photo is courtesy of Brenda Masek. This is of the Halsey, or Road 203 fire.

 

I promised some posts about what other interest areas are doing with issues related to ours.  Given the discussion about the recent Road 203 fire in Nebraska, an escaped prescribed fire.

The Chokecherry prescribed fire on the Bessey Ranger District of the Nebraska National Forest was declared a wildfire at approximately 4p.m. March 12, 2026. Although forecasted weather conditions were within parameters for the implementation of the prescribed fire, the wind event that took place 36 hours after ignitions ceased caused a spot fire that spread outside the project boundary.

Note: you may be reading about the Nebraska wildfires in general, and the Road 203 fire according to Inciweb as of  2 hours ago was 35, 814 acres with 0% contained.

 Operations were limited yesterday due to cold weather conditions; however, fire managers were able to assess the fire perimeter and evaluate current conditions. While there is snow on the ground in some areas, heat is still present in the duff, and creeping fire behavior has been observed within the fire perimeter. Groups of cedar trees in some areas of the fire are also still retaining heat.

Yesterday, firefighters began utilizing UAS (drones) equipped with infrared technology to identify hotspots. This information is relayed to crews on the ground to quickly access and efficiently extinguish those areas of heat. There will be two UAS platforms in use today to continue this direct extinguishment strategy.

It probably seems weird to people outside the Great Plains but we can have fires with snow on the ground.

Anyway, that is not the big Nebraska wildfire you might read about in the news, which is the Morrill fire which is (from Inciweb as I type this) 572,804 acres.

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We’ve discussed the issue of building trust here several times, and THW talks about trust in this post on his Substack.

The public knows prescribed fire is beneficial and needed, but a small number of mistakes, some which grow to large incidents, leave a yearly bad taste in the public’s mouth for operations like this. And with that, public trust wanes.

The amount of positive and successful burns and prescribed fires that have already occurred this year are in the hundreds if not thousands. But as we know, this does not make national news, and even the agencies sometimes forget to advertise the countless good wins they have. Why? Because they have a job to do, on to the next one.

Insane amounts of good results have been completed quietly in the background of everyone’s daily grind.

Believe me when I say that both wildland firefighters and management do everything they can to prevent things like this from happening. Has there ever been fire put on the ground when there was some apprehension in the air?

Of course, I would be lying if I said otherwise. But this is a workforce that lives and breathes “we can do this.”

There is also pressure from the “fuels and lands” side of the barn to get acres completed. Who makes the final call?

This topic is an elephant in the room, and policy changes are coming to at least some of the agencies. A report is expected soon on the Dragon Bravo Fire from last year, and will hopefully paint a clearer picture of this dynamic.

Of course, when I read this, I thought about the basics of transparency and accountability.  Of course, particularly transparency.  As Tim says, successful prescribed fires don’t make the news.  And then I thought about a PF dashboard, which would have all federal, state, and local (and NGO) prescribed fire acres, seasons, pre-treatments and so on.   Why couldn’t the feds initiate such a thing?

Let’s look at two recent “improving reporting-ease of access” efforts.

One is at FDA:

“The FDA’s previous adverse event reporting systems were outdated and fragmented and made important data difficult to access. These clunky systems also wasted millions of taxpayer dollars and created blind spots in our postmarket surveillance of products ranging from drugs and vaccines to cosmetics,” said FDA Commissioner Marty Makary, M.D., M.P.H. “We’re fixing the problem through a major modernization initiative. Starting today, the FDA will have a single, intuitive adverse event platform that will better serve agency scientists, researchers, and the public.”

In the past, the agency processed approximately 6 million adverse event reports per year across a patchwork of seven databases, which were expensive and had a poor user interface, making searches difficult. These platforms collectively cost the agency approximately $37 million per year to operate. Given the efficiencies of AEMS, the agency expects to save approximately $120 million over the next five years. The agency also expects the new searchable system to significantly reduce agency FOIA requests for unreleased adverse event reports, given that AEMS will publish reports in real time, rather than quarterly.

That’s improving access to the public (including reporters) as well as making it easier for users to enter information.

Another is at USDA

‘One Farmer, One File’ prevents our farmers from duplicating tasks while increases their productivity and time in the field.”

USDA’s Farm Service Agency (FSA), Natural Resources Conservation Service (NRCS) and Risk Management Agency (RMA) work with agricultural producers on a wide range of programs and services, from establishing a farm number to reporting acres planted, and from getting capital to recovering from disasters.

The goal of “One Farmer, One File” is to reduce the administrative burden for farmers. Additionally, this effort will make program delivery more efficient, save time for USDA staff, and decrease spending on disparate information technology systems.

The “One Farmer, One File” initiative is part of a broad modernization effort to unify all FSA, NRCS and RMA systems. This uniformed system will retire legacy systems and remove agency silos. USDA began work on this system in 2025 and plans to greatly advance the effort in 2026. USDA anticipates completing the project in 2028.

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To the USWFS folks and the FS:

INCIWeb is great! Why can’t we have a prescribed fire dashboard?